Regents of University of Cal. v. Superior Court for Los Angeles County
|California Court of Appeals
|83 Cal.Rptr. 549,2 Cal.App.3d 924
|22 December 1969
|The REGENTS OF the UNIVERSITY OF CALIFORNIA, a public corporation, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Kenneth L. KARST, David Kaplan, Douglas Glasgow, Webster Moore, Harry Deutsch, and Angela Y. Davis, Real-Parties in Interest. Civ. 35485.
Thomas J. Cunningham, Berkeley, Donald L. Reidhaar, San Francisco, Warren S. Levin and William H. McKenzie, for petitioner.
No appearance for respondent.
Charles H. Phillips, Richard H. Borow, Margolis, McTernan, Smith, Scope & Herring, John T. McTernan and Barry Nakell, Los Angeles, for real parties in interest.
The petitioner, the Regents of the University of California, a public corporation, seeks mandamus to compel the respondent Superior Court of Los Angeles County to order the action transferred to Alameda County pursuant to the provisions of section 400 of the Code of Civil Procedure. 1
On October 3, 1969, real parties in interest Karst, Kaplan, Glasgow, Moore and Deutsch filed in the Superior Court of Los Angeles County a taxpayers' action against the Regents of the University of California, a corporation. By the first cause of action the plaintiffs sought a declaratory judgment that certain resolutions of the Regents of October 11, 1940, June 24, 1949, and April 21, 1950, expressing the policy that any member of the Communist Party was barred from employment by the University of California, were invalid under the First and Fourteenth Amendments to the Constitution of the United States and that the expenditure of tax monies in the implementation of such resolutions constituted an impermissible use of public funds. It was alleged that a resolution had been adopted by the Regents on or about September 19, 1969, directing the president of the university to take steps to terminate the appointment as a faculty member at the university's Los Angeles campus of Angela Y. Davis who, in response to an inquiry by the university, had stated that she was then a member of the Communist Party; that termination proceedings were pending before a faculty Committee on Privilege and Tenure on the Los Angeles campus; and that by 'virtue of all of the foregoing, the University is now expending, and will continue to expend, tax monies in the implementation of the constitutionally invalid resolutions of October 11, 1940, June 24, 1949, and April 21, 1950.'
The second cause of action incorporated by reference all of the allegations of the first cause of action and contained further allegations as follows:
On October 7, 1969, the plaintiffs in the taxpayers' action filed a notice of a motion for summary judgment to be made on October 20, 1969. (Code Civ.Proc, § 437c.) The ground of the motion was stated to be that there was no defense to the action. With respect to the constitutional contention, reliance was primarily placed on the reasoning of Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 and Vogel v. County of Los Angeles, 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961.
On October 9, 1969, pursuant to leave of the court, Angela Y. Davis filed a complaint in intervention. Therein she adopted by reference the major portion of the complaint theretofore filed. She alleged that there was no issue of fact before the Committee on Privilege and Tenure and the Regents with respect to the matter of her termination for the reason that she had admitted the only fact alleged in the statement of charges, to wit, her membership in the Communist Party. She further alleged that the proceedings to terminate her employment were directed to the accomplishment of unconstitutional objects in that her constitutional rights, which she specified in detail, would thereby be violated. The intervenor further alleged: 'By reason of the facts alleged herein Intervenor has an interest in the subject matter of the Complaint and Intervenor claims what is sought in said Complaint; any determination of said subject matter and said claims must directly and unavoidably affect Intervenor's interest in her employment, her right to teach, and her freedom of expression and association.'
On October 10, 1969, the defendant, the Regents of the University of California, filed a notice of a motion for change of venue to be made on October 20, 1969, the order sought being a transfer of the action to the Superior Court of Alameda County on the ground that the causes of action alleged in the complaint were transitory in nature and that at the time of the commencement of the action the defendant, the Regents of the University of California was a legal resident of Alameda County. An affidavit of merits and of residence and points and authorities were filed in support of the motion. On the same date the defendant filed a general demurrer as to each cause of action, a memorandum of points and authorities in opposition to plaintiffs' motion for summary judgment, and the declaration of Thomas J. Cunningham in opposition to the motion for summary judgment. No answer to the complaint was filed.
On the date on which the defendant's documents were filed, October 10, 1969, the plaintiff in intervention, having obtained an order shortening time for service, filed a notice of motion for summary judgment to be made on October 20, 1969, together with points and authorities and a declaration in support thereof.
On October 16, 1969, the plaintiffs filed their 'Reply Memorandum of Points and Authorities on Motion for Summary Judgment' and six 'Reply Declarations.' On the same date the plaintiffs filed their memorandum of points and authorities and a declaration in opposition to the defendant's motion for change of venue. On that date the plaintiff in intervention also filed a memorandum of points and authorities in opposition to the defendant's motion for change of venue, and, in addition, a memorandum of points and authorities in opposition to the demurrer. On October 17, 1969, pursuant to an order shortening time, the plaintiff in intervention filed a declaration of Donald Kalish in opposition to the defendant's motion for change of venue.
On October 17, 1969, the defendant filed a memorandum of points and authorities in opposition to the motion of the plaintiff in intervention for summary judgment, together with a declaration of Thomas J. Cunningham in opposition to that motion. On October 20, 1969, the defendant filed a supplemental memorandum of points and authorities in support of the demurrer and in reply to the intervenor's memorandum of points and authorities in opposition to the demurrer, together with a second supplemental memorandum of points and authorities in support of the motion for change of venue.
On October 20, 1969, the superior court of Los Angeles County proceeded to hear all of the matters to which reference has been made. Its first expressed ruling was the denial of the defendant's motion for change of venue. Later that day the plaintiffs gave written notice to the defendant of that order. The petition presently before this court was filed in this court on October 30, 1969, which was within the statutory time. (Code Civ.Proc. § 400.)
Turning first to the question of whether the superior court properly denied the motion for change of venue, it is to be noted that the real parties in interest place reliance on section 393 of the Code of Civil Procedure to sustain that ruling. That section is in pertinent part as follows: '(1) Subject to the power of the court to transfer actions and proceedings as provided in this title, the county in which the cause, or some part thereof, arose, is the proper county for the trial of the following actions: * * * (b) Against a public officer or person especially appointed to execute his duties, for an act done by him in virtue of his office; * * *.'
Thus, the real parties in interest contend that the defendant, the Regents of the University of California, constitutes a public officer within the meaning of section 393 and that the proper county for trial is Los Angeles County. It is stated that the 'gravamen of the complaint is that Petitioner was illegally expending tax monies and other public funds in furtherance of an unconstitutional purpose' and that a substantial portion of such expenditures would necessarily occur in Los Angeles County. Reliance is placed on Cecil v. Superior Court, 59 Cal.App.2d 793, 140 P.2d 125, wherein a milk distributor brought a proceeding in mandamus in Los Angeles County seeking relief with respect to an order of the Director of Agriculture of the State of California which conditionally revoked the milk distributor's license. The defendant director sought a writ of prohibition to stay further proceedings in the superior court action on the ground that his motion for a change of venue to the county of his residence, Sacramento County, was erroneously denied. In denying a writ of prohibition this court stated (59 Cal.App.2d at page 794, 140 P.2d at page 126): ...
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Regents of University of California v. Superior Court
...District, Division Three, for a writ of mandate. The Court of Appeal determined that a peremptory writ of mandate should issue, 2 Cal.App.3d 924, 83 Cal.Rptr. 549, instructing the trial court to vacate and set aside its order granting plaintiffs' motion for summary judgment and to transfer ......